Patterson v. Jones

          REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         On October 12, 2016, Petitioner Robert Patterson, a prisoner in the custody of the Florida Department of Corrections, proceeding pro se under the mailbox rule, filed a petition for writ of habeas corpus with exhibits pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed an answer with exhibits on October 24, 2017. ECF No. 22. After Petitioner filed a motion for clarification concerning the number of issues Respondent should have addressed in the answer, ECF No. 24, Respondent subsequently filed an amended answer on November 20, 2017. ECF No. 25. Petitioner filed a reply with exhibits on January 19, 2018. ECF No. 29.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.

         Facts and Procedural History

         In January 2010, Petitioner was charged by Information filed in the Circuit Court in and for Escambia County, Florida, with sexual battery on a victim less than 12 years of age by a defendant over age 18 in September 2009. He was also charged with lewd and lascivious molestation on a victim less than 12 years of age by a defendant over age 18 in September 2009. Ex. A at 1.^[1] On October 13, 2010, Petitioner was found guilty as charged, but by order rendered on December 2, 2010, a new trial was granted based on erroneous admission of purported similar fact evidence. Ex. A at 151-59.

         Retrial was held beginning on September 26, 2011. The evidence elicited at trial, in pertinent part, was that the victim, age nine at the time of the offense, was not Petitioner's biological daughter but he allowed his name to be placed on her birth certificate. He was a father figure to the victim. The victim's half-brother is Petitioner's biological son from the prior relationship with his son's mother. The victim testified that during a September 2009 overnight visit in Petitioner's home, he woke her up from a nap and took her into the bedroom where he pulled her underwear down and got on top of her. Ex. D at 254-55. She testified he touched her vagina with his fingers and put them inside her. She testified that later, during the night, when she was in bed sleeping with her brother, Petitioner got into bed with them. Ex. D at 257. She said he reached under her nightgown and touched her genitals through her underwear. Ex. D at 258.

         Petitioner, who was age 39 at the time of the offense, was found guilty on Count One of the lesser offense of battery, and guilty as charged on Count Two, lewd or lascivious molestation. Ex. B at 293. On October 6, 2011, he was sentenced to 40 years in prison, Ex. B at 326-29, and appealed to the First District Court of Appeal. Ex. F. On January 17, 2013, the appellate court affirmed per curiam without discussion. Ex. H. The mandate was issued on February 4, 2013. Id. See Patterson v. State, 110 So.3d 904 (Fla. 1st DCA 2013).

         On May 28, 2013, Petitioner filed a motion under Florida Rule of Criminal Procedure 3.850, which was amended September 10, 2014, and March 16, 2015.^[2] Ex. I at 30-54. The post-conviction court summarily denied relief on December 30, 2015. Ex. I at 55-62. Petitioner appealed to the State First District Court of Appeal, and the court affirmed per curiam without discussion on May 25, 2016. Ex. J. The mandate was issued on July 25, 2016. Ex. K. See Patterson v. State, 193 So.3d 890 (Fla. 1st DCA 2016) (Table).

         While his Rule 3.850 motion was pending, Petitioner filed a petition in the First District Court of Appeal alleging ineffective assistance of appellate counsel, Ex. L, which was denied on the merits on February 18, 2014. Ex. M. Rehearing was denied on March 31, 2014. Id. See Patterson v. State, 136 So.3d 1222 (Fla. 1st DCA 2014) (Mem).

         On October 12, 2016, Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court raising the following grounds for relief:

Ground One: Ineffective assistance of trial counsel (IAC) for failing to object to use of shackles and failing to require justification. ECF No. 1 at 5.

Ground Two: IAC for failing to correctly convey plea offer. ECF No. 1 at 6.

Ground Three: IAC for failing to move for a mistrial or new trial due to prosecutorial misconduct concerning sequestered witnesses. ECF No. 1 at 8.

Ground Four: IAC for failing to move for mistrial when the prosecutor told the jury Petitioner had agreed the incident occurred in September. ECF No. 1 at 10.

Ground Five: IAC for failing to file a motion for discharge under Florida Rule of Criminal Procedure 3.191(m), which requires trial within 90 days of order granting a new trial. ECF No. 1 at 15.

Ground Six: IAC for failing to object to the judge's statement in the presence of the jury regarding motion for judgment of acquittal that the State had presented a prima facie case. ECF No. 1 at 18.

Ground Seven: “Williams Rule” violation and denial of motion for mistrial. ECF No. 1 at 21.

         ANALYSIS

         Applicable Legal Principles

         Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:

         An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413 (O'Connor, J., concurring).

         The Supreme Court has explained that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court stated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Id. at 102-03 (citation omitted). The federal court employs a “ ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.' ” Pinholster, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b). The Petitioner must have apprised the state court of the federal constitutional claim, not just the underlying facts of the claim or a “somewhat similar state-law claim.” Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5-6 (1982)). Petitioner must “fairly present” his claim in each appropriate state court in order to alert the state courts to the federal nature of the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In regard to claims of ineffectiveness of trial counsel, the Petitioner must have presented those claims in state court “ ‘such that a reasonable reader would understand each claim's particular legal basis and factual foundation.' ” Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007) (citing McNair, 416 F.3d at 1302).

         This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181. The state court's factual findings are entitled to a presumption of correctness and to rebut that presumption, the Petitioner must show by clear and convincing evidence that the state court determinations are not fairly supported by the record. See 28 U.S.C. § 2254(e)(1).

         “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions” and “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (“[W]e have long recognized that ‘a “mere error of state law” is not a denial of due process.' ” (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982))).

         For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). Federal courts are to afford “both the state court and the defense attorney the benefit of the doubt.” Id. at 13. The reasonableness of counsel's conduct must be viewed as of the time of counsel's conduct. See Maryland v. Kulbicki, 136 S.Ct. 2, 4 (2015) (citing Strickland, 466 U.S. at 690).

         To demonstrate prejudice under Strickland, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

         For this Court's purposes, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.' ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Both deficiency and prejudice must be shown to demonstrate a violation of the Sixth Amendment. Thus, the court need not address both prongs if the petitioner fails to prove one of the prongs. Strickland, 466 U.S. at 697.

         Issues for Review

         Ground One: Ineffective assistance of trial counsel (IAC) for failing to object to use of shackles and failing to require justification

         Petitioner contends, as he did in his final amended Rule 3.850 motion in State court, that his trial counsel rendered ineffective assistance by failing to object to the use of shackles and failing to request the court to state the required justification. ECF No. 1 at 5. The post-conviction court denied the claim, citing allegations Petitioner made in a previous post-conviction motion that counsel objected prior to Petitioner's testimony to the use of shackles and that, according to Petitioner's sworn allegations, the court overruled the objection based on security concerns. Ex. I at 57 (citing allegation at Ex. I at 11). The State First District Court of Appeal affirmed. Ex. J.

         In his first amended Rule 3.850 motion, Petitioner alleged that counsel asked the court to remove Petitioner's shackles before the trial started and when the court inquired of the officer, he responded that it was “a security thing so the court overruled the objection.” Ex. I at 11. The post-conviction court held that Petitioner merely speculated in his second amended post-conviction motion that the jurors saw the shackles and that Petitioner failed to include allegations in his motion stating a prima facie case that further objection to shackles would have been successful. Ex. I at 57.

         At trial, prior to Petitioner taking the stand to testify and outside the presence of the jury, trial counsel asked the court if Petitioner could be unshackled. ...